Kaluma is the nadir of our political decline

George Peter Kaluma (ODM, Homa Bay Town) has sponsored two Bills in the National Assembly that fly in the face of the Constitution. In the Anti-Corruption and Economic Crimes (Amendment) Bill, he proposes that the Anti-Corruption and Economic Crimes Act be amended to provide that a conviction for corruption or economic crimes should not bar the convicted person from holding public office, whether appointed or elected.

In the Family Protection Bill, he proposes to prohibit homosexuality and same sex marriage, to prohibit unnatural sexual acts and related activities and to proscribe activities that seek to advance, advocate, promote or fund homosexuality and unnatural sexual acts and to impose severe penalties, including the death penalty, for offender under the Act.

Mr. Kaluma is not alone in his attempts to subvert Kenya's current constitutional norms; but the extreme nature of the Bills he has sponsored in the 13th Parliament demand an examination of the environment in which he, and his colleagues, are making laws and overseeing the institutions of the State. One of the revelations from such an examination will be that the fetishisation of the Constitution, and international "best practices", has contributed substantially to the current dire state.

When taking instructions in my profession, we were trained to see legislative proposals in their proper context. We were taught to not let the perfect be the enemy of the good, nor the good be the enemy of the good enough. Though we were taught that the highest standards of anything should be our goal as legislative drafters, we were warned that the highest standards may frequently be attained only on paper while the practical realities of governing would undermine that lofty ambition at every turn.

Mr. Kaluma, through his two laws, has revealed the limits of high standards. Because Kenyans have fetishised the Constitution and frequently ignored the compromises they make as individuals, as families, as communities, as professionals and as voters, they have established a schizophrenic public principle: high standards for thee and good-enough standard for me. This hypocrisy is seen in the way we see no disconnect in complaining about the dangerous traffic in urban areas, but do absolutely nothing to drive safely, even when we can, because it is the other guy's responsibility - and not mine.

Mr. Kaluma is betting that on his anti-corruption amendment, he will face little, if any, opposition and, if he phrases his arguments in the most religion-tinged incendiary and discriminatory language favoured by United States' politicians, only human rights defenders fighting for equality will oppose the Family Protection Bill. He is not wrong. Because we have fetishised "public participation", even when the public is a majoritarian mob baying for the blood of minority communities, we assume that merely obeying the letter of the law is sufficient; the spirit of the law is neither here nor there.

We had a window of opportunity after the late Mutula Kilonzo and his successor, Martha Karua, pushed through the Constitution of Kenya (Amendment) Act that entrenched the Constitutional Review process that culminated in the Constitution of Kenya promulgated on the 27th August, 2010. (It is instructive that that the Thirteenth Anniversary of the Constitution of Kenya passed without being mentioned by State officers in any meaningful way.) That window of opportunity slammed shut when President Uhuru Uhuru Kenyatta and the Parliament of Kenya conspired to ram through the Security Laws (Amendment) Act, 2014. That was the first significant State attempt to undermine the spirit of the Constitution. Mr. Kaluma is the heir of that odious legislative legacy.

"Reasons" will always be found to not do the hard work of nation-building, institution- building and development of constitutionalism as a principle of society. Whether it is lack of "resources" or some other weak-tea argument, if the ground has been seeded with enough Doubting Thomases, the State officers intent on undermining the Constitution will find themselves pushing against an open door.

Kenya no longer has robust institutions that can argue forcefully against the likes of the Kaluma Bills. At various points in our history, it has been chairmen and members of the Law Society of Kenya (for example Willy Mutunga, CJ, Paul Muite, SC, and Gibson Kamau Kuria, SC) and clerics like Alexander Muge, Henry Okullu, David Gitari and Ndingi Mwana'a Nzeki and civil society institutions like the Ufungamano Initiative, National Council of Churches of Kenya and Kenya Human Rights Commission, and university dons like Dr. Crispin Mbai and Ngugi Wa Thiong'o and countless other selfless Kenyans, who spoke for constitutionalism, the rule of law and the rights of the people. Those days appear so quaint and long ago now.

From the moment the first "activist" was elected to Parliament, it has been a drip-drip-drip of disappointment after disappointment. Imagine the psychic shock of watching men and women who stood four-square against the excesses of Daniel Moi and Jomo Kenyatta turning a blind eye to the State-sponsored murders committed during Mwai Kibaki's presidency and the active sabotage of a brand-new constitution by the Uhuru Kenyatta presidency. Is it any wonder that the likes of Mr. Kaluma feel no sense of trepidation as they go about their business in the 13th Parliament?

Kenyans fell into a trap when they washed their hands of political work after the election of Mwai Kibaki. They left the "thinking" to the politicians and turned their energies and talents to making money hand over fist. The good times did not last long. Kenyan hiphop offers a mirror to the state of Kenya's politics. There was a time when Jua Cali, Nonini, Mejja, Necessary Noize, Ukoo Flani Mau Mau, and their musical peers were turning down gigs because they were so busy. The music they made was topical, current and deeply, deeply creative. Then the music stopped. Today all we have left are sex-fuelled "celebrity scandals". If this isn't a metaphor for the rise and fall of Kenyan constitutional politics, I don't know what is.

There is no turning back the clock. The halcyon days when the enemy was clear are long gone. We must build a new framework for not just holding the State, its officers and its agents to account, but we must build a framework that preserves our ability to inject new blood into the process. We have seen what happens when we leave it to octogenarians like Raila Odinga and Makau Mutua. It is not a pretty picture.

Beware constitutional fetishists

If Mohamed won't go to the Mountain...

The only president, I think, who was happy with the Constitution of Kenya when it was promulgated in August 2010 was Mwai Kibaki. He was serving out his last term. He had the Cabinet he wanted and exercised the powers of a small god. None of his successors has ever been happy with the no-longer-new Constitution. Uhuru Kenyatta conspired with his bitterest political rival to amend it through the asinine BBI. Uhuru Kenyatta's successor is going about the same enterprise in a more subtle way.

Every president, whether they are happy with the constitution or not, could always do with an amendment or two to strengthen their hands to do the things that they want to do in the way that they want to do them. President Ruto is not unique in this regard. But the game he is playing in the constitutional amendment game is a subtle and nuanced one. He isn't ramming the proposals down our throat like his predecessor.

I saw somewhere on the interwebs that someone thinks that the parliamentary "dialogue" committees are founded on legal quicksand and now I am convinced that Kenyan lawyers have been infected by the same brain-eating prion disease that has infected USA culture-warriors.

The "dialogue" is conducted by parliamentarians in their capacity as parliamentarians and it is wholly consistent with the broad mandate of Parliament to consider issues for the welfare of the people. If the "dialogue" leads to fresh change-the-constitution calls, the only reasonable condition should be that the constitutional amendments must be prosecuted in strict compliance with Chapter Sixteen of the Constitution of Kenya (and the judgment of the Supreme Court on the role of the president in the whole affair).

At present, the "dialogue" has not gone far enough and though among the terms of reference of the parliamentary dialogue committees is recommendations on amending the constitution, the recommendations have not been made. Of course, we recall the proposal to establish the office of the leader of the official opposition and if this proposal forms part of the recommendations of the parliamentary dialogue committees and Kenyans vote freely in a referendum to adopt the new office, only a mad-cow-disease-mad lawyer will object to the amendment. The voice of people, it seems, only interests these lawyers when it supports their preconceived notions of what Parliament can and cannot do.

Kenyan constitution-making has always been a messy affair. Anyone who suggests that there is an accepted template for constitution-making is not to be taken seriously. There are benchmarks, and best practices, but there is no single true way to make or amend the constitution. Certainly, how to choose what to amend and when to amend it is subject only to the politics of the day and the support of the people. We laud the lawyers who do the difficult work of holding the agents of the state to account, but we have nothing but scorn for those who fetishise the constitution beyond all reason.

Mental vassals of the French should shut up

Some quarters on Kenya would have you believe that the Economic Community of West African States, ECOWAS (and its baby sister, the Economic Community of Central African States, ECCAS) has failed to stem the tide of military putsches that have deposed rulers who have been in power for longer than the soldiers deposing them have been alive. Those quarters are full of very clever idiots.

Burkina Faso, Mali, Niger and Gabon have been the victims of great political cruelty. For the fig-leaf of independence, they have remained the vassal states of France. The economic wealth tied to their natural resources has only enriched their presidents and France. Burkinabe, Malians, Nigeriens and Gabonese have seen how multi-billionaires live while they have continued to live lives of penury, struggle and strife. Clever idiots would have you believe that the only way to remove the thieving rulers from power is through "democratic means" because these idiots are wedded to the idea of the law being stronger than the will of even a committed military minority.

One of Jimmy Cliff's songs says that "democracy is a road that leads to tyranny" (Democracy Don't Work, 1998) and I can't say that I disagree. In our hearts of hearts we know that a democratic tradition that impoverishes is no true democracy. Democracy, true participatory government, is meant to enrich the greatest number of the people. It is not meant to be a vehicle for the aggrandisement of a single family or thieving clan. Clever idiots will never admit this.

Now it may be that the military juntas that have installed themselves in Burkina Faso, Mali, Niger and Gabon will not succeed in giving power back to the people. And if that is the case, they, too, shall fall victim to punches as well. Shakespeare knew that one who lives by the sword, dies by the sword. But as we have learnt from the histories of our peoples, military juntas fail in part because they the seduced by the promises of the likes of the perfidious British and malevolent French. A pox on both their houses.

Clever idiots will point to Kenya and Tanzania and the relative political stability they have enjoyed since they gained Independence, ignoring that the political opposition in Kenya and Tanzania has had to fight, tooth and nail, for political expansion, sometimes at great cost to lives and limb. Merely because military putsches failed in Kenya and Tanzania is not proof that they are true democracies; it is a testament to the resilience of the the thieving first families or the overwhelming degree of control that ruling parties possessed. The absence of war is not proof of peace.

ECOWAS and ECCAS have no leg to stand on when they demand that the military juntas hand back power to the dictators they have flung out of office. The majority of the members of ECOWAS and ECCAS are ruled by thieves and gangsters. These governments should set about setting right their nations, empowering the people to participate fully and meaningfully in the politics of their nations or suffer the same fate as Burkina Faso, Mali, Niger and Gabon. And the windbags in Kenya calling for military intervention to restore to power the puppets of the malevolent French should sit out the debate. Forever.

Misplaced love

One of the legacies of the Mwai Kibaki government was the widespread adoption of corporate buzzwords to hide the graft that public officials engaged in. Few Kenyans noticed until it was too late. It emboldened public officials many of whom were elected or appointed in county governments, Kenya's newest experiment in participatory government. In Eldoret, the seat of County Government of Uasin Gishu, public officials and well-connected businessmen have taken graft and fraud to untold heights.

It is reported in the Kenyan tabloid press that the county government established a scholarship fund for secondary school graduates to attend universities in Canada and Finland. In order to be eligible, the students and their families were required to contribute to a trust fund, which was under the control of county government officials. Apparently, over 950 million shillings was paid into the trust fund. The programme enjoyed initial success; dozens of residents of Uasin Gishu County have been enrolled in universities in Canada and Finland. However, it is now reported that fees are no longer been remitted to the foreign universities where the students are enrolled and, consequently, the students are are at risk of being discontinued and if that happens, their immigration status is endangered.

Further reports indicate that tens of millions of shillings have been withdrawn from the trust fund in unexplained circumstances. The officials, including the former governor (and current senator) deny any wrongdoing even as they refuse to explain how and why the scholarship programme appears to no longer sponsor students.

Meanwhile, a labour recruiter has reportedly undertaken a similar scheme of her own. She has collected tens of millions from young jobseekers with promises of employment in the Middle East. She appears to be engaged in a scam similar to ones that have been uncovered in Nairobi. She has denied wrongdoing and has dared the Senate (which purported to be investigating the matter) and the Directorate of Criminal Investigations to prove that she is a fraud. Not even the allegations and pleas by her victims have compelled her to offer a credible explanation as to the true status of her business operations.

Both the county government officials and the labour recruiter could only be this bold because they knew that the forces of law and order would not trouble them overmuch. Indeed, the past six months have witnessed the collapse and withdrawal of economic crimes prosecutions on such a scale as to bring into doubt the effectiveness of the criminal justice investigatory and prosecutory framework. This is one of the legacies of the Mwai Kibaki government. While in the 2003 to 2013 period only state officers could hope to escape criminal convictions and judicial sentences, it seems that even halfwitted fly-by-night fraudsters are not overly afraid of the police, the DPP or the courts.

The contempt for the law is widespread. It is witnessed in petty and grand ways. One cannot but see the consequences of such contempt, whether it is the increasing cases of fraud by even small-fry government officials and obscure labour recruiters in district backwaters no one thought of. The increasing ineffectiveness of the fraud investigators and prosecutors, despite their apparent constitutional, legal and operational independence, undermines what little faith we have in the government, both as an institution and a reflection of our national values and principles. The last ten years were quite favourable to the memory of Mwai Kibaki. An analysis of the graft that pervades the firmaments of the state might show that such warm feelings for Mwai Kibaki are misplaced.

Love in the age of graft

The ash-heap of presidential politics is not for the faint of heart. It takes grit, chutzpah, a shit-load of cash, and an overweening narcissism to get to the top, and once there, the people who loved you enough to elect you (whether or not there are stolen votes in there, somewhere) turn on you, with their hand out, for things you discover that you can't deliver, or don't even have the cash to deliver, all the while redoubling your efforts to stay at the top, come hell, high water or uchawi.

Jomo Kenyatta and Daniel Moi, once they captured the party, did not have to fear being replaced at the top. Jomo Kenyatta, so far Kenya's only president for life, died in office. Daniel Moi ruled of almost 25 years, he might as well have died in office. It didn't matter to them whether their voters loved them or loathed them. They would remain in power because Kenyans didn't have a viable alternative. Then Daniel Moi ordered his attorney-general and his parliament to repeal Section 2A, and then the race was on to find his replacement.

His project turned out to be an extremely wealthy political naif. A damp squib. Mwai Kibaki, Daniel Moi's eventual successor, had a plan when he took on the unhappy job of President and Commander-in-Chief of the Kenya Armed Forces. His plan was shot to hell three minutes after he took the oath of office and the fat men around him overworked in making sure Mwai Kibaki would have a blood-soaked second inaugural. To be fair to the gentlemen from Othaya, he didn't seem to hanker after praise. He didn't appear to be vainglorious. He did what he did to bring the national economy to an even keel. He cut a swathe in what Indians called the Licence Raj and, for the most part, unleashed Kenyans' economic instincts. And then he let it all slip away by allowing the graft that had germinated in the Jomo Kenyatta regime and festered in the Daniel Moi regime to be supercharged to untold, gargantuan scale.

The three years of Kenya's Second Promise (2003 to 2005) are lost to the sands of time. While we pray for a Third Promise, Uhuru Kenyatta postponed that day and the new man at the top isn't finding a lot of support on his way to Zion. The graft that Uhuru Kenyatta inherited grew wide, broad and deep. It is as if everyone who was anyone in the Government had his hand in the cookie jar. Mwai Kibaki may not have pulled every single Kenyan out of extreme poverty, but he left a healthy economic machine that had room to run. What Uhuru Kenyatta did was to take a perfectly adequate Toyota Hilux and drove it into total destruction, leaving an engine that had knocked, a gearbox that had no cogs, brakes that were a threat to life and limb, lights whose bulbs had long ago failed, and a suspension that, if the car ran, almost always required the driver and passengers to seek out chiropractors. William Ruto has to rebuild the engine, gearbox, brakes, lights, and suspension first, before he can even try to take a load of miraa to market.

The economic vandals who took root during Mwai Kibaki's and Uhuru Kenyatta's regimes have metastasised. Until they are dealt with, they will undermine every effort to restart the national economic machine. They will need to be uprooted and cast asunder from the health sector, basic education sector, energy sector, telecommunications sector, and even the civil society. So long as they know that it is business as usual, they will continue to walk the land barefaced and unafraid. Thieves should not be so bold. If the president fails to deal with them, no amount of salesmanship will reverse the animus the people will have for him when he next comes round begging to be re-elected.

The roads to failure

President Uhuru Kenyatta, The Fourth, is a tragic president. Save for the acolytes who trailed his coattails, like the slime that follows a slug's trail, not many Kenyans can point to things that made their lives better. The "Big 4 Agenda" - affordable housing, manufacturing, universal healthcare, and food security - have little to show in the way of improved quality of life for the billions of dollars that President Kenyatta showered on them. Sadly, President Ruto has learnt all the wrong lessons from his predecessor.

 The error, I believe, was a failure of imagination in President Kenyatta's entire presidency. In trying to emulate President Mwai Kibaki's successes, especially successes founded on the budding or construction of things and institutions, President Kenyatta failed to understand that legacies are not cast in concrete but in how well the citizenry lives its life. It is meaningless to building hundreds of thousands of square metres of hospital space if one has no doctors, nurses,  clinicians, dieticians, pharmacists, radiologists and surgeons to provide medical services in them. Uhuru Kenyatta carried in the capital-intensive construction foundation that Mwai Kibaki had bequeathed him and in the bargain wasted money that could have gone to training and deploying the experts needed to manage the infrastructure Mwai Kibaki had constructed. And as a result, while Kenyans were burdened by billions of dollars in public debt, fewer of them enjoyed an improved quality of life. President Ruto is embarking on the same fool's errand that Uhuru Kenyatta had.

While it is certainly true that Kenyans lack adequate hospital facilities, classrooms, police stations, and public transport, the solution is not to put all our financial eggs in the one basket of a construction-fuelled boom. Instead, President Ruto should focus 99% of his fiscal energies in supplying the healthcare workers and teachers and matatu drivers of the highest professional calibre that Kenyans need to offer the public services they desperately need. Mwai Kibaki and Uhuru Kenyatta have already supplied William Ruto with the concrete-and-steel foundation he needs to deliver high-quality public services. He should seize the opportunity if he truly wishes to succeed as The Fifth.

An example might suffice. The bulk of Nairobi's office workers live in Eastlands. They rely primarily on Jogoo Road to get to and from their office jobs. If President Ruto does as Kenya's infrastructure demons are urging him to do - expand Jogoo Road into a four-lane highway - all he will supply is an even more intractable traffic jam problem. But if, instead, he spent the bulk of his public transport money allocated to Jogoo Road to improving the commuter train service, finally reforming the matatu saccos operating in Eastlands, and improving the existing road and rail infrastructure, he will deliver, on orders of magnitude, more benefits to the residents of Eastlands than Uhuru Kenyatta and Mwai Kibaki combined. Simple things like road lane -markings and street lights will do more to reduce traffic accidents and improve traffic enforcement than all the new roads in all of the world ever will. It will take courage for the President to do this - the courage to suppress the instinct to outdo Mwai Kibaki and Uhuru Kenyatta in the total kilometres of new roads built during a presidency.

I want the president to succeed. If he builds more new roads then spends money to maintain and improve the existing ones, he will fail.

Eat the old

When I was in high school, I loved Sunday afternoons. We had free time between 2:00 pm and 7:00 pm, and part of that time was spent watching the NBA. The Bulls, the Celtics, the Cavs, the Warriors...I loved all of them. Every other Saturday was reserved for the EPL: Liverpool, Aston Villa, The Spurs...I loved most of it. Thirty years later, I can say, hand on heart, that maybe part of the reason why these leagues were enjoyable is because they dod not have the whiff of serikali about them.

From the moment Daniel Moi intervened in the identities of Kenya's football clubs, little that Government has done to "improve" and "reform" organised sports in Kenya has been a boon for sports or sports federations. The continued global dominance of Kenya's world class long-distance runners is despite the interventions of serikali, not its support. And the shambles of the way Kenyan athletes, if not all sportspersons, are treated at the Olympic Games and Commonwealth Games by Ministry mandarins is proof that more Government intervention in sports' federations equals extreme poor treatment of athletes and their fans.

I can't remember who the last Minister of Sports was that did anything innovative to unleash the talents of the sporting fraternity. I bet that none of you can, unless you are like sports administration savants or something. We have powerfully emotionally redolent memories of sportspersons who brought us to near-tears with their talent: Washington Muhanji and Wilberforce Mulamba forever will bring a lump to my throat when I think of their exploits on the football pitch. We don't have fond, if any, memories of sports ministers or sports administrators. We revile the mandarins in charge of sports. We think of them as villains. They are, collectively, the cartoonishly evil Montgomery Burns of Kenyan sports.

I know that the present generation of sports fans still enjoy watching sports on TV. Where I am sequestered for the moment, a group of young people have extolled the virtues of Steph Curry that perhaps I may admit to myself that my fandom was considerably tame. But equally, save for organised intramural competitions among schools, few, if any, see sports (other than long-distance races) as a viable option. They know that serikali isn't interested in nurturing and protecting their talents. No number of we-will-build-this-that-and-other-stadium promises are expected to come true by Kenya's young people. (Long-distance running doesn't need a stadium, so little, if any, disappointment is feared.)

It looks bleak today when we think of the status of Kenya's sporting talents. Stadia are rotting. Talent development is infested by carpetbaggers, thieves and ne'er-do-wells. But at the top of the ash-heap of mediocrity sit governmental officials with neither the skill, talent, knowledge or motivation to establish frameworks and systems that will allow talents to flourish. Young people are at the mercy of old men with old ideas. I don't know what is to be done save to say, eat the old.